Owners Corporation Strata Plan 72535 v Brookfield [2012] NSWSC 712

Supreme Court New South Wales

Medium Neutral Citation: Owners Corporation Strata Plan 72535 v Brookfield [2012] NSWSC 712 Hearing dates: 14/06/2012 and 15/06/2012 Decision date: 29 June 2012 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Plaintiff has benefit of warranties implied by the Home Building Act against each defendant. Neither defendant owes plaintiff a common law duty of care. Catchwords: [BUILDING AND CONSTRUCTION] - strata titles - whether development was adapted for commercial use as a tourist holiday or overnight accommodation - whether owners corporation is entitled to the benefit of the statutory warranties implied under the Home Building Act 1989 (NSW) - whether appropriate for a trial judge to determine a common law duty of care owed to an owners corporation - whether defendants owed a common law duty of care.

[PROCEDURE] - civil - interlocutory issues - severability of issues - whether court should order the separate and prior determination of issues proposed by the notices of motion - leave sought to withdraw admission - whether admission is contrary to the actual facts - whether interests of justice favour application for leave being granted - no question of principle.

[WORDS AND PHRASES] - dwelling. Legislation Cited: Civil Procedure Act 2005 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2004 Strata Schemes (Freehold Development) Act (1973) Strata Schemes Management Act 1996 (NSW) Cases Cited: Astley v Austrust Ltd (1999) 197 CLR 1 Bryan v Maloney (1995) 182 CLR 609 Maile v Rafiq [2005] NSWCA 410 Mount Albert Borough Council v Johnson [1972] NZLR 234 (CA) NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2010] NSWSC 969 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 Woolcock Street Investments Pty Limited v CDG Pty Limited (2004) 216 CLR 515 Texts Cited: Dictionary of the English Language, first quarto edition, 1820 Oxford Dictionary of the Australian Language (second edition, 2004) Category: Principal judgment Parties: The Owners - Strata Plan 72535 v Brookfield (Plaintiff) Brookfield Australia Investments Limited (First Defendant) Hiltan Pty Limited (Second Defendant) Representation: Counsel: F C Corsaro SC / A C Casselden (Plaintiff) B W Walker SC / T J Breakspear (First Defendant) D T Miller SC (Second Defendant) Solicitors: Swaab Attorneys (Plaintiff) King & Wood Mallesons (First Defendant) Colin Biggers & Paisley (Second Defendant) File Number(s): 2011/82598